Debra K Andreson v. Progressive Marathon Insurance Company ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
DEBRA K. ANDRESON and DAVID EDWARD FOR PUBLICATION
ANDRESON, November 21, 2017
9:00 a.m.
Plaintiffs-Appellees,
v No. 334157
Eaton Circuit Court
PROGRESSIVE MARATHON LC No. 15-000168-NF
INSURANCE COMPANY,1
Defendant,
and
PROGRESSIVE MICHIGAN
INSURANCE COMPANY,
Defendant-Appellant.
DEBRA K. ANDRESON and DAVID EDWARD
ANDRESON,
Plaintiffs-Appellees,
v No. 336351
Eaton Circuit Court
PROGRESSIVE MARATHON LC No. 15-000168-NF
INSURANCE COMPANY,
Defendant,
1
Plaintiffs’ complaint named both Progressive Michigan Insurance Company and Progressive
Marathon Insurance Company as defendants. On June 5, 2015, the parties stipulated to dismiss
Progressive Marathon from this action because the insurance policy in effect on the date of
plaintiffs’ accident was issued to plaintiffs by Progressive Michigan. Progressive Marathon did
not participate in this matter at trial or on appeal. Accordingly, as used in this opinion,
“defendant” refers to Progressive Michigan.
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and
PROGRESSIVE MICHIGAN
INSURANCE COMPANY,
Defendant-Appellant.
Before: BECKERING, P.J., and O’BRIEN and CAMERON, JJ.
O’BRIEN, J.
In Docket No. 334157, defendant appeals as of right the trial court’s order awarding
plaintiff Debra Andreson (Debra) $1,324,112.68 following a jury trial.2 In Docket No. 336351,
defendant appeals as of right the trial court’s order awarding attorney fees and taxable costs to
plaintiffs. We ordered these appeals to be consolidated.3 We reverse in part and remand for
entry of a judgment in favor of Debra and against defendant in the amount of $200,000. In all
other respects, we affirm.
On October 11, 2013, plaintiffs were stopped in their vehicle at a red light when it was
struck from behind by a different vehicle driven at a high rate of speed. Both plaintiffs suffered
injuries as a result of the collision, and it was uncontested that plaintiffs were not at fault.
Plaintiffs were insured by defendant at the time of the accident, and their insurance policy
included a provision for underinsured motorist (UIM) benefits in the amount of $250,000 per
individual, capped at a total of $500,000 per accident. The UIM contract provision required
plaintiffs to pursue recovery from the at-fault driver and obtain the maximum policy limits from
the at-fault driver’s insurance carrier before they could collect UIM coverage from defendant. It
also required plaintiffs to obtain defendant’s permission before reaching a settlement with the
at-fault driver or the at-fault driver’s insurance carrier.
Defendant initially declined to grant plaintiffs permission to settle with the at-fault
driver’s insurance carrier. On February 18, 2015, plaintiffs filed this lawsuit against defendant in
an attempt to obtain that permission. Eventually, defendant agreed to grant plaintiffs permission
to settle. The parties agree that plaintiffs obtained a settlement of $100,000 from the at-fault
driver’s insurance carrier, the maximum limit of that policy, allocated at $50,000 per plaintiff.
After the settlement, plaintiffs sought payment from defendant for the difference between
the maximum amount of their UIM coverage and the settlement amount. Defendant refused to
pay plaintiffs’ UIM benefits, arguing that plaintiffs’ injuries failed to qualify as threshold
2
The trial court also entered an award in favor of David Andreson, which defendant does not
challenge on appeal.
3
Andreson v Progressive Michigan Ins Co, unpublished order of the Court of Appeals, entered
January 18, 2017 (Docket Nos. 334157 and 336351).
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injuries. With respect to Debra, defendant alleged that her lower back injuries arose from a
pre-existing condition and were not causally related to the October 11, 2013 accident. The case
proceeded to trial, at which the central issues were (1) whether plaintiffs suffered serious
impairments of body function as a result of the at-fault driver’s negligence and (2) whether
Debra’s lower back injuries were causally related to the auto accident. Before trial, defendant
filed a motion in limine to preclude the jury from being told the UIM policy limits. The trial
court granted defendant’s motion, finding that “[a]ny evidence of the UIM policy limits, if
relevant, would be more prejudicial than probative under MRE 403.”
Testimony at trial indicated that Debra suffered various physical injuries as a result of the
auto accident. Her neurosurgeon, Dr. Christopher Abood, testified that he had served as Debra’s
treating physician since October 2008 when she first came to him complaining of low back pain.
Dr. Abood indicated that, although she was experiencing pain at that time (five years before the
auto accident), the pain was manageable and was not preventing her from working or living her
normal life. Dr. Abood did not see Debra for the five-year period from October 2008 to August
2013. During that time, she received a series of facet injections from a different doctor to whom
Dr. Abood had referred her for treatment.4 Debra returned to see Dr. Abood on August 22, 2013,
indicating that she had fallen on her back and experienced a significant increase in pain and
heaviness in both legs, which severely limited her ability to walk any distance. Dr. Abood
diagnosed the pain as coming from a narrowing of the spinal canal.
Dr. Abood next saw Debra on November 11, 2013, after she was in the accident at issue.
At that time, she was experiencing severe pain in her back and legs. Dr. Abood testified that, in
his medical opinion, the increased low back pain was not related to her earlier fall. According to
Dr. Abood, Debra’s “spinal condition was severely aggravated by the automobile accident,
causing severe worsening of her back and leg symptoms and pain.” Dr. Abood recommended
that Debra have back surgery, which he performed on December 11, 2013.
At the close of proofs, the trial court found a jury-submissible question of fact as to
whether Debra’s injuries met the threshold.5 The jury ultimately found that they did and
awarded her $1,374,112.68 in damages.
After trial, plaintiffs’ counsel filed a proposed judgment for $1,324,112.68 for Debra,
which reflected the jury’s special verdict minus $50,000 to reflect the setoff from the earlier
settlement. On May 19, 2016, defendant filed an objection to the entry of judgment with respect
to Debra, arguing that the judgment in her favor should be limited to $200,000 because her
4
Facet injections involve an injection of a local anesthetic into the joint to temporarily deaden a
small nerve. This is a diagnostic procedure, designed to determine if a patient would benefit
from a rhizotomy, a procedure that permanently deadens the same nerve.
5
On the last day of trial, the trial court granted a directed verdict to David pursuant to MCL
500.3135(2)(a)(i), finding that there was no factual dispute concerning the nature and extent of
his injuries and that he had suffered a serious impairment of body function. Defendant does not
challenge that ruling on appeal.
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recovery was capped by the $250,000 UIM policy limit minus the $50,000 setoff. Following a
hearing, the trial court determined that it was required to enter a judgment consistent with MCR
2.515(B), which provides that “[a]fter a special verdict is returned, the court shall enter judgment
in accordance with the jury’s findings.” Accordingly, the trial court entered a judgment in favor
of Debra for $1,324,112.68, which reflected the jury’s award minus the $50,000 settlement
offset. Defendant filed a motion for remittitur, arguing that the jury’s verdict must be reduced
because it was more than the UIM policy limits. The trial court denied defendant’s motion.
On appeal, defendant argues that the trial court abused its discretion by denying its
motion for remittitur. We agree.6 Appellate review of a grant or denial of remittitur is limited to
the determination of whether an abuse of discretion occurred. Majewski v Nowicki, 364 Mich.
698, 700; 111 NW2d 887 (1961). A trial court abuses its discretion when it chooses an outcome
outside of the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476
Mich. 372, 388; 719 NW2d 809 (2006).
“Broadly defined, remittitur is the procedural process by which a verdict of the jury is
diminished by subtraction.” Pippen v Denison, 66 Mich. App. 664, 674; 239 NW2d 704 (1976)
(emphasis omitted). “As long as the amount awarded is within the range of the evidence, and
within the limits of what reasonable minds might deem just compensation for such imponderable
items as personal injuries sustained and pain and suffering, the verdict rendered should not be set
aside.” Id. at 675 (citation and quotation marks omitted).
In determining whether remittitur is appropriate, a trial court must decide whether
the jury award was supported by the evidence. Diamond v Witherspoon, 265
Mich. App. 673, 693; 696 NW2d 770 (2005). This determination must be based on
objective criteria relating to the actual conduct of the trial or the evidence
presented. Palenkas v Beaumont Hosp, 432 Mich. 527, 532; 443 NW2d 354
(1989). The power of remittitur should be exercised with restraint. Hines v
Grand Trunk W R Co, 151 Mich. App. 585, 595; 391 NW2d 750 (1985). If the
award for economic damages falls reasonably within the range of the evidence
and within the limits of what reasonable minds would deem just compensation,
the jury award should not be disturbed. Palenkas, supra at 532-533. [Silberstein
v Pro-Golf of America, Inc, 278 Mich. App. 446, 462; 750 NW2d 615 (2008).]
Defendant argues that the trial court erred in denying its motion for remittitur because the
verdict awarded by the jury was in excess of the UIM policy limits. Neither uninsured motorist
(UM) coverage nor UIM coverage is required by Michigan law, and, therefore, “the terms of
coverage are controlled by the language of the contract itself, not by statute.” Dawson v Farm
Bureau, 293 Mich. App. 563, 568; 810 NW2d 106 (2011). As our Supreme Court has explained,
“Uninsured motorist coverage is optional—it is not compulsory coverage mandated by the
6
We acknowledge that there may be a question regarding whether the trial court’s decision to
enter an award less than the full jury award was contrary to MCR 2.515(B). However, neither
party raised this issue on appeal, and, in light of our ruling, it is not relevant to the disposition of
this case.
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no-fault act,” and as such, “the rights and limitations of such coverage are purely
contractual . . . .” Rory v Continental Ins Co, 473 Mich. 457, 465-466, 703 NW2d 23 (2005). “It
is not the province of the judiciary to rewrite contracts to conform to the court’s liking, but
instead to enforce contracts as written and agreed to by the parties.” Dawson, 293 Mich. App. at
569.
Prior to trial, the trial court stated that plaintiffs were pursuing a “Breach of Contract
claim against Defendant for the refusal to pay UIM protection benefits without explanation.” Per
the terms of the parties’ contract, defendant was only liable for $250,000 per plaintiff, up to a
total of $500,000. All parties agree on appeal that plaintiffs’ earlier settlement of $100,000
entitled defendant to a $50,000 offset with respect to each plaintiff, meaning that defendant’s
liability was limited to $200,000 per plaintiff under plaintiffs’ UIM policy.
In denying defendant’s motion for remittitur, the trial court concluded “that the jury’s
verdict cannot be looked at as being clearly excessive” because “the jury was not made aware of
the [UIM coverage] limits at the request of” defendant. Essentially, the trial court found that
defendant waived the UIM policy limits by requesting that the policy limits not be disclosed to
the jury. However, pursuant to this Court’s decision in Tellkamp v Wolverine Mut Ins Co, 219
Mich. App. 231, 243; 556 NW2d 504 (1996), “[a]bsent an express agreement to the contrary,”
either parties’ decision to not inform the factfinder of a policy’s limit “does not amount to a
waiver of the limits of liability under the contract.”7 In this case, there was no express agreement
between the parties to waive the UIM policy limits. Nor did defendant, through its counsel or
otherwise, expressly waive the policy limits.8 Thus, the trial court could not enter an award for
Debra that exceeded the maximum liability agreed to by the parties in their contract, see
Dawson, 293 Mich. App. at 568-569, plus applicable interest and costs, see Tellkamp, 219 Mich
App at 244.
Alternatively, we are persuaded by defendant’s argument that the trial court’s refusal to
reduce the amount of the jury verdict to the maximum policy limits amounts to a nullification of
the policy limits, effectively creating insurance coverage by estoppel contrary to Kirschner v
Process Design Assocs, Inc, 459 Mich. 587; 592 NW2d 707 (1999). In insurance cases, “[t]he
application of waiver and estoppel is limited, and, usually, the doctrines will not be applied to
broaden the coverage of a policy to protect the insured against risks that were not included in the
7
We recognize that this portion of Tellkamp is arguably dicta. However, even assuming that it is
dicta, we adopt this portion of the Tellkamp panel’s reasoning as our own. See Gallagher v
Keefe, 232 Mich. App. 363, 373-374; 591 NW2d 297 (1998).
8
Plaintiffs point to several statements made during the course of trial to assert that defendant
waived the UIM policy limits. Some of the statements that plaintiffs point to were made during
the course of trial by a witness that worked for defendant, and others were made by defendant’s
counsel during opening statements. After reviewing these statements, especially in light of the
trial court’s ruling that the policy limits not be disclosed to the jury, we cannot conclude that the
statements amounted to “a voluntary and intentional abandonment of a known right.” Quality
Prods & Concepts Co v Nagel Precision, Inc, 469 Mich. 362, 374; 666 NW2d 251 (2003).
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policy or that were expressly excluded from the policy.” Id. at 593-594. “This is because an
insurance company should not be required to pay for a loss for which it has charged no
premium.” Id. at 594. Defendant contracted with plaintiffs to insure them up to $500,000 for
UIM coverage, and plaintiffs paid premiums to be covered up to that amount. In the absence of
defendant’s waiver of these limits, the trial court impermissibly required defendant to pay for
Debra’s loss in excess of the amount that it agreed to cover. Accordingly, we reverse the trial
court’s denial of defendant’s motion for remittitur and remand for entry of a judgment in favor of
Debra in the amount of $200,000.
Next, defendant argues that it is entitled to a new trial based upon the trial court’s
evidentiary rulings to allow defendant’s adjuster, Marsha Vandercook, to testify (1) regarding the
contents of her claims log notes and (2) whether Debra suffered a serious impairment of body
function. We disagree. The grant or denial of a motion for a new trial is within the sound
discretion of the trial court. Bartlett v Sinai Hosp of Detroit, 149 Mich. App. 412, 418; 385
NW2d 801 (1986). “A trial court’s discretionary decisions concerning whether to admit or
exclude evidence will not be disturbed absent an abuse of that discretion.” People v Mardlin,
487 Mich. 609, 614; 790 NW2d 607 (2010) (citation and quotation marks omitted). An abuse of
discretion occurs when the trial court’s decision to admit or exclude evidence falls outside the
range of reasonable and principled outcomes. Hecht v Nat’l Heritage Academies, Inc, 499 Mich.
586, 604; 886 NW2d 135 (2016). “The decision upon a close evidentiary question by definition
ordinarily cannot be an abuse of discretion.” People v Golochowicz, 413 Mich. 298, 322; 319
NW2d 518 (1982).
Several months before trial, plaintiffs brought a motion to strike defendant’s answer and
to enter a default against defendant, in part, because defendant refused to produce Vandercook’s
claims log notes. The trial court conducted an in camera review of the insurance claims log and
found as follows:
[T]he adjuster’s log is partially privileged and partially discoverable.
Specifically, all log notes entered after February 16, 2015 are privileged, and all
log notes entered on or before February 16, 2015 are subject to discovery.
The week before trial, plaintiffs’ counsel served defendant with a subpoena for Vandercook to
testify at trial, and defendant moved to quash the subpoena. After a hearing on defendant’s
motion, the trial court ruled that Vandercook could testify regarding a notation she made in her
claims log in which she indicated that she thought Debra’s injuries had met the serious
impairment threshold. In its reasoning, the trial court relied on MRE 701 and its determination
that the claims log was not hearsay because it qualified as a business record under MRE 803(6).
At trial, plaintiffs called Vandercook to testify during their case-in-chief. Vandercook
testified in pertinent part that, as part of her job with defendant, she routinely evaluated the
injuries of people insured by defendant, and that she did so by relying on each person’s medical
records and history of medical treatment. She testified that neither she nor a doctor could make a
determination as to whether serious impairment of body function occurred because only the jury
could make that determination. Outside the presence of the jury, defendant objected to
Vandercook testifying about whether Debra suffered a serious impairment, arguing that “[s]he
has deferred to the jury on the issue of serious impairment” and it was not “appropriate opinion
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testimony from a lay witness because it actually [called] for a medical expertise, which Ms.
Vandercook simply [did] not have.” The trial court rejected defendant’s argument, reiterating its
earlier ruling that the lay opinion testimony was admissible under MRE 701. Vandercook went
on to testify that she wrote in her claims log that, given the acute findings in the emergency room
and the fact that Debra underwent surgery, there was “enough to support SIBF” regarding the
chest, neck, and low back injuries suffered by Debra. Vandercook clarified that this note in her
claims log “was a preliminary assessment [that she] made based on the records [she] had at that
time.” On cross-examination, Vandercook testified that her statement in her claims log was
based on an assumption that Debra’s lower back surgery was related to the accident.
Vandercook testified that, although she initially thought Debra had suffered serious impairments
of body function, she changed her mind when she obtained the medical files from Dr. Abood
because those records indicated that the lower back surgery was not related to the accident but
was necessitated by a pre-existing lower back injury.
On appeal, we must determine whether the trial court abused its discretion by admitting
Vandercook’s testimony regarding her claims log and her initial conclusion that Debra had
suffered a threshold injury as lay opinion testimony under MRE 701. Though Vandercook is not
a doctor, she testified that she had significant experience in reviewing medical documentation for
defendant, she had approved payment of approximately 100 auto accident claims, and she had
approved payment of those claims after determining that the insured had suffered a serious
impairment of body function. MRE 701 provides:
If the witness is not testifying as an expert, the witness’ testimony in the form of
opinions or inferences is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.
Because Vandercook’s testimony was based on her review of medical records in the ordinary
course of her employment, the opinion expressed in her claims log was rationally based on her
perceptions, was helpful to a clear understanding of her trial testimony, and was helpful to the
determination of whether Debra suffered a serious impairment of body function. Though this is
certainly a close evidentiary decision, our review of this matter is limited to whether the trial
court abused its discretion, and we cannot conclude on the record before us that the trial court’s
decision on this close evidentiary decision fell outside the range of reasonable and principled
outcomes. Hecht, 499 Mich. at 604; Golochowicz, 413 Mich. at 322.
But even if the trial court should not have admitted the adjustor’s testimony regarding her
claims log and initial conclusions, defendant failed to show that it was more probable than not
that the alleged error was outcome determinative. Barnett v Hidalgo, 478 Mich. 151, 172; 732
NW2d 472 (2007); see also MCR 2.613(A). On cross-examination, Vandercook went into
detailed development about the meaning of her note. Vandercook testified that she wrote the
note under the assumption that Debra’s injuries were related to the accident. She clarified that
her initial assessment was made before receiving Debra’s medical files from Dr. Abood, and that
she changed her opinion after reviewing those files. The files showed that Debra had a history of
lower back pain that was severely aggravated two months before the accident at issue. Based on
Vandercook’s explanation, the jury was not left with the impression that the note in her claims
log reflected her final assessment of whether Debra’s injury qualified as a serious impairment,
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and defendant has failed to otherwise establish that it was more probable than not that the alleged
error was outcome determinative.
Defendant also argues that Vandercook’s testimony was inadmissible because the
existence of a threshold injury is a legal conclusion, and witness testimony regarding a legal
conclusion is improper. However, the authority relied on by defendant for this assertion provides
that “[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.” Downie v Kent
Products, Inc, 420 Mich. 197, 204-205; 362 NW2d 605 (1984), amended 421 Mich. 1202 (1985)
(citation and quotation marks omitted). “The admissibility of such a statement should not be
questioned merely because the determination of liability may turn on whether the jury believes or
disbelieves that opinion.” Id. at 206. The admissibility of Vandercook’s claims log entry,
wherein she expressed an opinion that Debra had suffered a serious impairment of body function,
is not rendered inadmissible simply because the jury may have believed Vandercook’s initial
evaluation of the seriousness and extent of Debra’s injuries. Accordingly, we conclude that the
trial court’s denial of defendant’s motion for a new trial based on the admission of Vandercook’s
testimony was not an abuse of discretion.
Lastly, defendant argues that the trial court abused its discretion in awarding attorney fees
to plaintiffs under the offer of judgment rule, MCR 2.405(D)(1). We disagree. “We review for
an abuse of discretion a trial court’s award of attorney fees and costs.” Smith v Khouri, 481
Mich. 519, 526; 751 NW2d 472 (2008). “An abuse of discretion occurs when the trial court's
decision is outside the range of reasonable and principled outcomes.” Id.
Before trial, the parties participated in case evaluation, which resulted in a
non-unanimous award. Defendant filed an offer of judgment for $10,000 with respect to David
and $50,000 with respect to Debra. Plaintiffs filed counteroffers of judgment for $150,000 with
respect to David and $200,000 with respect to Debra. None of the offers of judgment were
accepted. Pursuant to MCR 2.405, the average offer of judgment was $80,000 with respect to
David and $125,000 with respect to Debra. Following a four-day jury trial in which verdicts
were rendered in favor of both plaintiffs, the trial court entered an award of $179,481.65 for
David and $1,324,112.68 for Debra.
On July 20, 2016, plaintiffs filed a motion for award of attorney fees pursuant to the offer
of judgment rule under MCR 2.405(D)(1). Plaintiffs requested $135,650 in attorney fees and
$15,465.67 in taxable costs. Defendant opposed the motion, arguing that the trial court should
decline to award attorney fees pursuant to the “interest of justice” exception set forth in MCR
2.405(D)(3). MCR 2.405(D) provides, in pertinent part, as follows:
(D) Imposition of Costs Following Rejection of Offer. If an offer is rejected,
costs are payable as follows:
(1) If the adjusted verdict is more favorable to the offeror than the average offer,
the offeree must pay to the offeror the offeror’s actual costs incurred in the
prosecution or defense of the action.
* * *
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(3) The court shall determine the actual costs incurred. The court may, in the
interest of justice, refuse to award an attorney fee under this rule. [Emphasis
added.]
On December 14, 2016, the trial court entered an order granting in part and denying in
part plaintiffs’ motion for award of attorney fees and costs, awarding $120,820 in attorney fees
and $7,840.67 in taxable costs. The trial court specifically rejected defendant’s argument that
the trial court should deny plaintiffs’ motion based on the interests of justice exception set forth
in MCR 2.405(D)(3). The trial court reasoned as follows:
After review, this Court finds that the interest of justice exception does not apply
in the present case because the public policy of litigating the legal issues of first
impression in this case do not override the weight of MCR 2.405 in promoting a
just, speedy, and economical determination of every action. MCR 1.105.
Additionally, the issues of first impression were litigated and decided prior to the
Counteroffers of Judgment. The only fee requested for time expended on those
issues was 3.80 hours utilized on a Motion for Reconsideration of the Court’s
March 14, 2016 Order Excluding Evidence of the Prior Settlement Amount and
the UIM Policy Limits, by Plaintiffs’ counsel, Mr. Nolan, on April 4, 2016 for a
total of $2,280.00. The Motion for Reconsideration was denied by the Court in an
Order dated April 5, 2016. Further, Plaintiffs’ requested attorney fees only began
to accrue on March 22, 2016, which was 21 days after the Counteroffers of
Judgment were filed with the Court; therefore, Defendant had expressly rejected
the Counteroffers of Judgment at that time pursuant to MCR 2.405(C) and all
requested attorney fees, except the $2,280.00 expended on the Motion for
Reconsideration, were actually necessitated by Defendant’s refusal to accept the
Counteroffers of Judgment. Thus, Plaintiffs are entitled to their actual fees
including attorney fees less the $2,280.00 pursuant to MCR 2.405(D)(1).
“The purpose of MCR 2.405 is to encourage settlement and to deter protracted litigation.”
Sanders v Monical Machinery Co, 163 Mich. App. 689, 693; 415 NW2d 276 (1987). In Sanders,
this Court stated that MCR 2.405(D) “should, in our opinion, be routinely enforced and attorney
fees granted.” Id. at 692. As such, a grant of attorney fees under MCR 2.405(D) “should be the
rule rather than the exception.” Butzer v Camelot Hall Convalescent Centre, Inc (After Remand),
201 Mich. App. 275, 278; 505 NW2d 862 (1993). “To conclude otherwise would be to expand
the ‘interest of justice’ exception to the point where it would render the rule ineffective.” Id. at
278-279. “What constitutes ‘in the interest of justice’ must be decided on a case-by-case basis.”
Lamson v Martin, 216 Mich. App. 452, 463; 549 NW2d 878 (1996).
Defendant points to Luidens v 63rd Dist Court, 219 Mich. App. 24, 35; 555 NW2d 709
(1996), for the assertion that “a case involving a legal issue of first impression or a case
involving an issue of public interest that should be litigated are examples of unusual
circumstances in which it might be in the ‘interest of justice’ not to award attorney fees under
MCR 2.405.” However, defendant admits in its appellate brief in Docket No. 336351 that “[t]he
central issue at trial was whether the Plaintiffs suffered ‘threshold injuries’ as a result of the
at-fault driver’s negligence.” There was no issue of first impression related to the question of
whether either plaintiff suffered a serious impairment of body function. Further, there was no
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issue of first impression as to the discoverability of the insurance adjuster’s claims log, the
admissibility of testimony concerning the contents of that claims log, or the admissibility of the
adjuster’s testimony regarding her initial conclusion that Debra had suffered serious impairments
of body function. The only legal issue that the trial court described as an issue of first
impression was the question of whether, in a UIM case, the amount of the UIM policy limits
should be admitted into evidence. The trial court resolved that issue in defendant’s favor by
ruling that the amounts of plaintiffs’ UIM policy were not admissible at trial. Therefore, the
issue of first impression did not impact the jury’s decision that both plaintiffs had suffered
serious impairments of body function, nor did it not impact the jury’s decision to award plaintiffs
damages.
Defendant argues that the issue of first impression regarding the admissibility of the UIM
policy limits impacted the settlement value of the case and, therefore, impacted the offers of
judgment. However, at the time the offers of judgment were made, both defense counsel and
plaintiffs’ counsel stated on the record that they believed the maximum amount either plaintiff
could recover from defendant pursuant to the UIM policy was $200,000 each. Therefore, the
admissibility of the UIM policy limits clearly did not impact the settlement value of the case for
purposes of the offers and counteroffers of judgment. Accordingly, plaintiffs still qualify for an
award of attorney fees under MCR 2.405(D)(1),9 and we affirm the trial court’s award of
attorney fees to plaintiffs.
Docket No. 334157 is reversed in part and remanded to the trial court to enter judgment
in favor of Debra and against defendant in the amount of $200,000. In all other respects, Docket
Nos. 334157 and 336351 are affirmed. No taxable costs pursuant to MCR 7.219, neither party
having prevailed in full.
/s/ Colleen A. O'Brien
/s/ Jane M. Beckering
/s/ Thomas C. Cameron
9
We note that, even after Debra’s award is adjusted to reflect the UIM policy limits, she is still
entitled to costs pursuant to MCR 2.405(1).
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